New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: February 22, 2013

April 24, 2013

June 6, 2013

July 24, 2013

August 16, 2013

Actual Record Closed Date: September 3, 2013

Hearing Officer: Israel Wahrman, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 22,

2013

Andrea Santoro, Attorney (Via Telephone) — Parents

NO APPEARANCE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 24, 2013

Andrea Santoro, Attorney — Parents

Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 6, 2013

Andrea Santoro, Attorney — Parents

Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 24, 2013

Andrea Santoro, Attorney — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 16, 2013

Andrea Santoro, Attorney — Parents

(Via Telephone) — Parents

BAGROUND AND POSITIONS OF THE PARTIES

On December 27, 2012, I was appointed by the New York City Department of Education (DOE) as Impartial Hearing Officer, pursuant to the Individuals with Education Act (IDEIA), 20 U.S.C. ϸ 1415 (b) (2) as well as Section 504 of the Rehabilitation Act, 29 U.S.C. ϸ 794, following recusal by another hearing officer, in the matter of I am certified as an Impartial Hearing Officer (IHO) by the University of the State of New York, Education Department. The hearing took place on the following dates: February 22, 2013 (prehearing conference), April 24, 2013, June 6, 2013, July 24, 2013 and August 16, 2013. Extensions of the compliance date were granted due to unavailability of witnesses as well as to allow time for receipt of the transcript of July 10, so that this could render a decision with the final transcript in hand.

This is a dispute with regard to the appropriateness of the Individualized Education Program (IEP) and the placement of for the 2012-13 school year. The Department of Education conceded Prong 1 of the Burlington/ Carter test, Tr. 39; it defended neither its IEP and program offered nor the placement that the DOE offered. The DOE’s position is that the parent should be denied funding at the unilateral placement selected by the parents, i.e., at the Program, as the DOE’s view is that the Program was not an educationally appropriate placement for and also that the equities do not favor the parent. Tr. 232-233. The position of the parent is that the program at was an appropriate one and that the parents’ actions were such that the equities favor them. Tr. 220-222.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The obligation of the school district is to provide a child with a Free and Appropriate Education (FAPE). With regard to how much benefit is required for the educational program to be considered as appropriate, the US Supreme Court concluded that a school district is not required to “maximize each child’s potential commensurate with the opportunity provided other children.” Board of Education v. Rowley, 458 U.S. 176, at 198. The third circuit, however, has held that an IEP must provide “meaningful educational benefit.” T.R. ex. Rel. N.R. v. Kingwood Township Bd. Of Educ. 205 F.3d 572, 577 (3d Cir. 2000). In Rowley, the case involved a student who was progressing nicely in regular education classes. With regard to a student attending education classes, however, in Deal v. Hamilton County Board of Education, 392 F.3d 840 (2004), at 864, the sixth circuit court of appeals concluded that “At the very least, the intent of Congress appears to have been to require a program providing a meaningful benefit toward the goal of self-sufficiency, ely where self-sufficiency is a realistic goal for a particular child.” It should be noted that this “Deal Standard “ of what constitutes FAPE was cited without comment in a second circuit case, A.D. v. M.D. individually and on behalf of E.D., Plaintiffs v. The Board of Education of the City School District of the City of New York, 690 F. Supp. 2d 193 (2009), at 217. Also, further clarifying how much benefit is required to achieve FAPE, in Cerra v. Pawling, 427 F.3d 186 (2005) at 195, the Second Circuit, citing Walczak, 142 F.3d at 130 and Mrs. B., 103 F.3d at 1121, explained that a district fulfills its substantive obligations if its IEP leads to progress and not regression and a district court in evaluating whether a district has met its obligation, must examine the record for “objective evidence” of whether a child is likely to progress or regress under a proposed plan.

The legal standard for funding cases such as this one is well established, based upon School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359, 1985. The analysis involves three prongs. The first prong is whether the public school provided a Free and Appropriate Education (FAPE). If it did, the inquiry ends here; as the school district has met its burden. Prong 2 requires the determination of whether the program selected by the parent is appropriate. Then, there is Prong 3, do the equitable considerations support the parent’s claim? See also Florence County Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 12-13 (1993).

With regard to the burden of proof in New York State, the school district has the burden of proof, including the burden of persuasion, in any impartial education due process hearing. The exception to this is that “a parent or person in parental relation seeking tuition reimbursement for a unilateral placement shall have the burden of persuasion and burden of production on the appropriateness of such placement.” ϸ 4404 of the Education Law (Amended by Laws of New York, 2007, Chapter 583.)

In Frank G., 459 F.3d at 112, the second circuit explained that to “qualify for reimbursement under Individuals with Disabilities Education Act (IDEA), parents need not show that a private placement furnishes every service necessary to maximize their child’s potential. They need only show that the placement provides educational instruction ly designed to meet the unique needs of a child, supported by such services as are necessary to permit the child to benefit from instruction.”

In R.B. and H.Z. on behalf of C.Z. v. New York City Department of Education and Joel Klein, 713 F. Supp. 2d 235, the U.S. District Court for the Southern District of New York cited Gagliardo, 489 F.3d at 115, in which the Second Circuit set forth that “A unilateral private placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a child.”

Tribunals should be careful about delineating what specifically a program should look like, or as stated by the United States Supreme Court, “courts must be careful to avoid imposing their view of preferable educational methods . . .” Rowley, 458 U.S. at 207-08.

The criteria for deprivation of FAPE based upon procedural deficiencies are that the deficiencies (a) impeded the students’ rights to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of FAPE, or (c) caused a deprivation of educational benefits. 20 USC ϸ 1415 [f][3][E][ii]. As stated in Matrejek v. Brewster Cent. School Dist. 471 F. Supp. 2d 415, 419 [SDNY 2007] aff’d 2008 WL 3852180 [2d Cir. Aug. 19, 2008], procedural flaws do not automatically require a finding of a denial of a FAPE. Only procedural inadequacies that cause substantive harm to the child or his parents – meaning that they individually or cumulatively result in the loss of educational opportunity or seriously infringe on a parent’s participation in the creation or formulation of the IEP, constitute denial of FAPE. Here there were no procedural flaws that rose to this level.

Here the DOE has done nothing to defend its program or placement. We turn therefore to Prongs 2 and 3 of the Burlington/ Carter test to determine if the parents should receive public funding for their unilateral placement of in a situation where it is conceded by the DOE that it did not provide an appropriate program and/or placement.

With regard to Prong 2, there was testimony from , School Director of . Ms. is certified in education and she oversees the site at which the particular program attended by is located, an all girls sectarian school. She supervised at this site and also visited ’s class frequently. Tr. 126. attended a class students, Tr. 192, whose head teacher was certified in education but it was also taught part of the day by another teacher who was not education certified but had seminary training in teaching and also had much experience teaching. There was also an assistant teacher in the room. Tr. 97, 122-125. Instruction was often in smaller groups, for example reading was in a group of 3. Mr. described how and other subjects were taught, with particular reference to how these methods and strategies of instruction addressed ’s skills and needs. Tr. 99-106. and her classmates in the Program were mainstreamed for lunch with regular education students in the building. Tr. 155. She also participated in events with students in the mainstream. Tr. 188. Ms. explained in detail what ’s skills were like in different areas and how her particular needs were addressed through the instruction at . She also described and explained the progress that had made in a number of areas. Tr. 99-106. A reward system was implemented to address ’s needs with regard to paying attention and participating in class. Tr. 104-106. ’s needs were addressed though services by certified personnel, Tr. 106. ’s needs were also addressed through to the classroom by a as well . Tr. 197-198, 141-142, 150-151, 186. Ms. emphasized that had to be taught in a number of modalities, because of her attention span . “If we don’t pull her in with all the modalities, we lose her.” Tr. 100. Ms. explained how a “window box” was used to address ’s reading instructional needs – by bloing out lines above and below, it helped avoid overstimulation which Ms. opined could not handle. assessed using the Test and in tests. Tr. 195. Although the school did not provide it was described how ’s fine . 107. Ms. opined that was appropriate for since she was responding to the small group setting at , as she needs to work in and has been able to provide such a setting. Tr. 109.

The school program at does include 1 ½ hours per day of prayer and religious study. Exhibit C, Tr. 171-181.

It is clear that the program at , though its small classes and focus on addressing educational needs, was providing an appropriate education for him that meets his needs. The parent has satisfied Prong 2.

With regard to Prong 3, ’s father testified with regard to his attempts to visit the school and finally he did visit it. He wrote to the DOE about his concerns. Exhibits D,

E. Tr. 48-57. The parents appear to have acted in a cooperative fashion and I therefore believe it would not be appropriate to reduce or eliminate reimbursement, for equitable reasons, for the costs incurred at .

That attends a religious private school, should not pose a problem with regard to the DOE funding the nonreligious part of the school day; i.e. by far most of the day. A decision of the State Review Office (SRO) has stated, “Tuition reimbursement does not create a financial incentive for children to undertake religious education. It simply makes parents whole, by reimbursing them for expenditures which they would not have made, if their board of education had offered their children appropriate educational placements. “ The SRO decision then noted with regard to the particular case under review that the “petitioner has not refuted the testimony of the child’s teacher that the child does not receive religious instruction in …[the private school].” Application of a Child with a Appeal No. 96-14. Similarly, “… the LEA’s reimbursement to parents for expenses incurred by withdrawing their child from the public school system that they believe is not providing their child a FAPE and unilaterally placing him in a sectarian school which they believe satisfied his educational needs, does not violate the Establishment Clause [of the United Stated Constitution, forbidding the government’s establishing religion].” L.M. v. Evesham Township Bd. Of Educ., 256 F. Supp.2d 290 (D.N.J. 2003), 303. The latter case did, however, note the U.S. Supreme Court’s case of Zobrest v. Catalina Foothills Schl. Dist. , 509 U.S. 1, 6 n.7(1993), which prohibits the use of federal funds to pay for religious “ .” This rule prohibiting use of federal funds to pay for worship, instruction or proselytization is from 34 CFRϸ 76.532(a)(1)(1992) and in a footnote in the Zobrest decision by the United States Supreme Court it was noted that this rule is based upon the Department of Education’s interpretation of constitutional requirements. The footnote states, “This interpretation seems persuasive to us.” Ibid. Zobrest did allow public funding of a sign-language interpreter at a

Consistent with this case law, the fact that is a sectarian school presents no obstacle to funding of education services there. Funding of the part of the day devoted to prayer and religious instruction, however, presents a problem with regard to using public funds to promote the establishment of a particular religion, which consistent with Footnote 7 of Zobrest, is prohibited as a constitutional violation.

The case here involves a situation where the parents have an income that would not be sufficient to pay the tuition at , as was clear from the family tax returns, and the testimony by ’s father. Exhibits G and J, Tr. 59-63. The family had an adjusted gross income in 2012 of approximately $18,000. Exhibit J-1. The total cost of the school was $42,550; 80% of this total is $34,040, as was explained above. The total family earnings are less than the tuition for this school. In such a situation, where parents la the funds to pay up front, a school district must pay the monies owed, assuming that the parent’s claim is meritorious with regard to the three Burlington factors. This conclusion is based upon the following case law.

In Miener v. Missouri, 800 F.2d 749 (8th Cir. 1986), 753, the court declared, “we are confident that Congress did not intend the child’s entitlement to a free education to turn upon her parent’s ability to ‘front’ its costs.” So the fact that the situation is not one of reimbursement should not be the important factor, eliminating the ability of a parent to obtain financial relief.

In Conners v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y. 1998) at 805, the court followed similar reasoning:

By prohibiting prospective placement, Defendants would deny assistance to families that are not able to front the cost of a private, non-approved school, without exception… Given the fragile state of many children, and their dire need for constant and consistent care, even brief periods of inappropriate schooling could lead to tremendous . Families of greater economic means would not be faced with such a grim prospect. It simply cannot be the case that an act designed to grant “all” children access to needed services could undermine that very goal by making such access dependent upon a family’s financial situation.

In a more recent second circuit case, Mr. A. ex rel. D.A. v. NYCDOE, 769 F. Supp. 2d 403 (SDNY 2011), the court concluded that federal statute “authorizes direct retroactive tuition remedy for the same reasons that the Burlington court found that the Act authorizes a tuition reimbursement remedy…. Where … parents la the financial resources to ‘front’ the costs of private school tuition, and in the rare instance where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs – or will take years to do so – parents who satisfy the Burlington factors have a right to retroactive direct tuition relief.” Id . at 428.

Since the parent has prevailed with regard to the three Burlington/ Carter factors, the DOE must reimburse and make direct payment for ’s attendance at for the 2012-13 school, excluding the cost of religious activity, as explained above.

ORDER

For the reasons stated above, the DOE is hereby ordered to pay 80% of the cost of ’s attendance at during the 2012-13 school year. The DOE shall reimburse the parent and make direct payment to the school within two weeks of receipt of confirmation of amount paid and amount still owed of the cost of $34,040 (80% of full tuition costs). Dated: September 11, 2013

_____________________________

ISRAEL WAHRMAN, ESQ.

Impartial Hearing Officer IW:mv

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”

(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Impartial Hearing Request, 12/26/12, 3 pages B Due process response, 1/4/13 3 pages C 2012/2013 Class schedule, 1 page D Letter faxed to from parent, 8/22/12, 2 pages E Letter faxed to from parent, 9/27/12, 2 pages F School Tuition agreement, 9/13/12, 1 page G 2011 Individual Income Tax Return, 2 pages H School Progress Report, 3/13/13, 2pp I Proof of Payment, 2/14/13, 1pp J Return, 2012, 2 pp

DEPARTMENT OF EDUCATION

1 IEP, 5/15/12, 12 pages 2 Progress report, 2/28/12, 2 pages 3 , February 2012, 2 pages 4 , 3/6/12 2 pages 5 , March 2012, 1 page 6 Final Notice of Recommendation, 8/7/12, 1 page